BHM v BHN & Ors [2014] NSWCATAP 26

BHM v BHN & Ors [2014] NSWCATAP 26

Leave to appeal was refused because the proposed appeal raised no doubtful question of principle and no reasonably clear injustice, BHO's welfare and interests were best served by separate representation given strong evidence that he lacked capacity to instruct a solicitor, refusal of the adjournment did not deny procedural fairness where the threshold issue was BHO's capacity and BHM was aware of his limitations, and granting leave would unnecessarily delay the guardianship matter and impose disproportionate costs.

Jurisdiction
Australia
Judgment Date
10 June 2014
Procedural Posture
Application for Leave to Appeal Against Interlocutory Decisions in Guardianship Proceedings / Appeal Panel Decision on Leave to Appeal
Outcome
Applications for leave to appeal refused.
Legal Topics
['civil and Administrative Tribunal Appeal' 'interlocutory Decisions' 'leave to Appeal' 'legal Representation in Guardianship Division' 'adjournment' 'capacity to Instruct Solicitor' 'separate Representation']
['administrative Law' 'guardianship Law'] ['civil and Administrative Tribunal Appeal' 'interlocutory Decisions' 'leave to Appeal' 'legal Representation in Guardianship Division' 'adjournment' 'capacity to Instruct Solicitor' 'separate Representation']

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Procedural Posture

Application for Leave to Appeal Against Interlocutory Decisions in Guardianship Proceedings / Appeal Panel Decision on Leave to Appeal

Legal Issues

  1. 1 ["Whether leave should be granted to appeal against the Guardianship Division's interlocutory decision refusing an adjournment." "Whether leave should be granted to appeal against the Guardianship Division's interlocutory decision refusing leave for BHM to represent BHO." 'Whether refusal of the adjournment involved a breach of procedural fairness.' "Whether BHO's welfare and interests were best served by separate representation where there was evidence that he lacked capacity to instruct a solicitor."]

Ratio Decidendi

Leave to appeal was refused because the proposed appeal raised no doubtful question of principle and no reasonably clear injustice, BHO's welfare and interests were best served by separate representation given strong evidence that he lacked capacity to instruct a solicitor, refusal of the adjournment did not deny procedural fairness where the threshold issue was BHO's capacity and BHM was aware of his limitations, and granting leave would unnecessarily delay the guardianship matter and impose disproportionate costs.

Court Disposition

Applications for leave to appeal refused.

Orders

  • ["The Appellant's application for leave to appeal against a decision of the Guardianship Division made on 6 May 2014 to refuse an application for an adjournment is refused." "The Appellant's application for leave to appeal against a decision of the Guardianship Division made on 6 May 2014 to refuse leave for BHM,...